Tuesday, December 16, 2008

Curb on Warrantless Search Gag Power Upheld

FREE SPEECH -- The FBI's power to demand information from your internet services provider about where you have gone or what you have said online—and to gag them from telling you about the warrantless search—has just been dealt what could be a fatal blow.

A federal appeals court yesterday upheld, in part, a decision striking down provisions of the Patriot Act that prevent national security letter (NSL) recipients from speaking out about the secret records demands. As reported by Kurt Opsahl for the Electronic Frontier Foundation in San Francisco,

The NSL law allows the government to seek your electronic communications transactional records from your (information services provider) without obtaining a court order. The gag provisions required the recipient of a NSL to stay quiet as long as the government desired, with only a fig leaf of judicial review.The fig leaf was not good enough to satisfy the First Amendment. The Second Circuit struck down the statute's truncated judicial review provisions, which required the court to treat the FBI's assertions as conclusive absent evidence of bad faith. In addition, the government was required to initiate judicial proceedings to enforce the gag, instead of the ISP who received the NSL. The Court also construed several controversial aspects of the NSL statute narrowly, substantially reducing the scope of the FBI's gag power.